SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I agree with the reasons of Jones J for allowing this appeal.  The conviction and verdict must be set aside and verdict and judgment of acquittal entered on the count in the indictment.

2. JONES J: The applicant was convicted after a trial of the offence of unlawfully and indecently dealing with a child under the age of 16 years.  The complainant boy was five years of age at the time of the alleged offence which is said to have occurred at the home of his uncle and aunt on 14 November 2000.

Background facts

3. The complainant, on that evening, slept over at the house of his uncle and aunt. Also living at the house were the complainant’s three cousins, aged respectively 19, 17 and 15 years. The complainant enjoyed the company of these cousins and frequently stayed over at the house – sometimes as often as two times per week.

4. The appellant, who was 19 years of age at the time of the incident, was a friend of the two oldest cousins. He, too, was a frequent visitor to the house. As a consequence, he was acquainted with the complainant and they appeared to be on good terms. The teenagers engaged in playful games with the complainant which have been variously described as “mucking around”, “acting the goat”^[1] and “rough and tumble sort of play”^[2].  The complainant’s interaction with his cousins and their friends appears to have been part of the attraction for his going to their house.

5. On the day in question, the complainant went with his aunt to her house in the early afternoon. The appellant visited the household for a short time in the late afternoon and then left with the older cousins, returning at about 6.30 pm. By this time the complainant and the other members of the family, save for the two oldest cousins, had eaten their evening meal. The appellant and the older cousins left the home again after 7.00 pm and did not return until 9.00 pm. Thereafter the group of young people, which now included a girlfriend of one of the cousins and two other friends, left the house. The incident complained of could only have occurred in the period between 6.30 pm and the time of the appellant’s departure soon after 7.00 pm.

6. The first account of the events comes from the complainant’s aunt. She was cleaning up after the evening meal. She had seen the appellant and the complainant in the lounge room. The appellant was then turning the fan with his fingers and talking to the complainant. She returned to the washing up. Not long after she heard the complainant call out “Don’t H” or “Stop H”^[3].  She went to them and saw that they were in the boys’ bedroom which was no more than four or five metres from the kitchen.  The door of the bedroom was open.  The complainant was lying on the bed on his stomach, and he said “H is trying to put my feet up into the fan”^[4].  After telling the appellant to stop doing that, she returned to the kitchen.  A short time later, which the aunt estimates to be approximately half an hour, the complainant came into the kitchen and asked if he could have his bath.

7. Some eight days later on 22 November 2000 the complainant was with his mother when he made the complaint in circumstances described by the mother in the following passage^[5] -

“PROSECUTOR: Just tell me, you said that you – you said to him, “Lie down with me,” and you were going to play this game counting sheep over the sun? – Yeah.

Just tell me what happened then? – We played for a little while and I pretended I was asleep and Z grabbed my hand and put it on his private part.

Now you said before that he was wearing a pair of underpants? – Yes.

Was it over the top of the underpants or underneath? – Under.

Under.  All right.  Now is that anything – is that something that Z had ever done before? – No way.

How did you react? – I jumped straight off the bed and said, “What the hell do you think you’re doing?”

And how did he react? – He put his hands over his eyes and he said “Nothing.”  And I said to him, “Don’t tell me ‘nothing’, mate, because mummy was awake not asleep.”  And that’s when he told me what had happened.

Just tell me what he said to you, his exact words? – His exact words were, “H did it to me.”  And I said, “Excuse me” and that was the exact tone I used.  And he said, “but don’t tell anyone, mummy, because it’s a secret.”

And what did you say? – And I said, “Mate, you can tell mummy anything,” and he just told me.

What did he tell you? – He told me that him and Z – Z and H were in the room.  He’d dragged Z into the room.  He was – Z actually was sitting on the lounge watching All Saints.  He put his shoes on.  H grabbed him into the room, threw him on the bed and his exact words were, “I went bounce, bounce, bounce,” on the bed.  And he said, “H rubbed his hands through his hair like this and then put his hands down his pants and he pulled my willy and pulled it hard.”^[6]

8. This passage was admitted after a voir dire as evidence of fresh complaint. The police were notified that afternoon. Arrangements were made later to interview the complainant on 27 November 2000. This interview was conducted by a police officer from the Juvenile Aid Bureau and was videotaped. The videotape then became the evidence in chief of the complainant pursuant to s 93A of the Evidence Act 1977.

Evidentiary issues

9. For the appellant to be convicted it was necessary for the jury to be satisfied beyond reasonable doubt of the evidence of this five year old complainant. His evidence consisted of the videotaped interview and his cross-examination by defence counsel at trial. The only other evidence directly referring to the accused’s involvement in the offence was the fresh complaint evidence referred to above and the aunt’s evidence of her observations referred to above. Evidence was also led from the mother and the aunt about changes in the complainant’s behaviour about the time of the alleged incident. The danger of according weight to this evidence will be discussed later. But there was no evidence which corroborated the complainant’s account.

10. Quite apart from the difficulty inherent in obtaining from a five year old child an accurate and reliable account of events, there were a number of unsatisfactory features about the complainant’s evidence. Firstly, the interview was undertaken 13 days after the alleged incident which is a long time for a 5 year old boy to retain and recall events free of influence of subsequent activities and events.

11. Secondly, there was a lack of spontaneity in the manner in which the complainant repeated the complaint to the interviewing officer. When the reason for the interview was raised the complainant’s response to the question was:

“What about H, mate? – He chucked me on the bed and bounced up and I’ve bounced up in clouds and he – I’m – and he broke the bed and – and Uncle G – he said, “Stop, don’t tell anyone.”  He’s – he – he said – he was threatening to kill me.

Why did he say that for? – I don’t know.  He didn’t have a gun or nothing.

Yeah? – Yet he said, “I’m threatening to kill you and punch you.”

Now, you said before that he said, “Don’t tell anybody.” What was he talking about there? – Well, he said “Stop it otherwise I’ll threaten to kill you.”  I said, “No, I’ll ring the cops on you.”

That’s right? – He said, “No, you won’t.”^[7]

Thereafter followed statements by the complainant that he fell asleep; that the appellant threatened to kill and to punch him; and a response by the complainant to the appellant that he [the complainant] had a hammer and pliers and would “bash [the appellant’s] toes till they get squashed”^[8].  Finally, in response to a question to tell the interviewing officer what he told his mother, the complainant finally replied:-

“No, I haven’t got one of those.  So, Z, I’d like you to tell me what you – what you told your mum? – He threw me on the bed –

Yeah? – and he twisted my willy and I – I went, “What the heck’s going on here?” I thought it was a dream, but it wasn’t.

Who did that to you? – H.^[9]

12. This passage was followed by an allegation that the appellant twisted the complainant’s hair and cut his hair with scissors. This latter allegation was plainly false. Nor was there any suggestion by the prosecution that the appellant threatened the complainant. The complainant also said there was a girl in the house at the time which does not appear to be the case. There were statements such as “He smacked me in the head this morning”^[10] and “he just picked me up in the morning and just threw me on the ground”.^[11]  There many other similar statements which were simply inventions or outpourings of the child’s imagination.

13. During the interview, the interviewing officer continually asserted terms of the complaint when asking questions. For example –

“Who’s place were you at when H twisted your willy?” (Record 180/1)

“What do you do at Aunty D’s place that night when H twisted your willy?” (Record 181/1)

“What were you wearing when H twisted your willy?” (Record 182)

“What happened when he threw you on the bed?--  Just bounced like a trampoline”

“And what did you do when you were bounced? -- I – they had wood there and I just went like that …

“Yep. And then you said H twisted you on your willy? – Mmm.” (Record 183)

On more than 20 occasions throughout the record of interview the interviewer’s question involved the assertion that the appellant had “twisted his willy”.

14. There were other internal inconsistencies in the interview, additional to those I have mentioned above, referred to by counsel for the appellant but it is not necessary to refer to each one of them. There is sufficient in those identified to evoke the general concern about the reliability of the terms of the interview.

15. I shall turn then to the cross-examination of the complainant, where again there were a number of internal inconsistencies. The complainant denied, for example, that the appellant played with him or touched him in any way.^[12]  He denied there was any incident with the fan.^[13]  He denied that he put his mother’s hand inside his pants.^[14]  In cross-examination he gave evidence of the actual complaint in the following passage:-

“Well, can you think why it was that you said that to your mum? – I don’t know.

Well is that – was it true to say that H had put his hand inside your pants? – No – actually yes.

Well what – what is it, Z? Is it true to say that ----? – I mean no.

HIS HONOUR: Z, is it true to say that H put his hands inside your pants? – Yes.

You remember before you came in today, I asked you about telling the truth? – Yes.

And I asked you about whether it would be wrong to tell lies? – It is wrong.

Right.  All right.  Now just try to answer questions from Mr. Dowling and tell us the truth.  Yes, go on, Mr. Dowling.

MR. DOWLING: Thank you, your Honour.  Z, is it true that H put his hand inside your pants? – Yes.

All right.  And what did he do when he put his hand inside your pants? – He twisted it.

Twisted what? Eh? What did he twist, Z? – I forget.”^[15]

16. There is, of course, considerable difficulty in adducing evidence from a child as young as the complainant. There is a temptation to lead the young witness and a likelihood that what is lead will be agreed to. There is also a danger that in making allowances for such a young person’s limited capacity to understand, recall and explain, true objectivity in the assessment of the evidence is lost. These are features which are well known to experienced trial lawyers but difficult to guard against when summing up to a jury.

17. Regard must also be had to the inconsistencies between the evidence of the complainant and that of his aunt, whose evidence would appear to be reliable. The aunt’s evidence of having seen the appellant moving the fan blades and the complainant’s allegation that the appellant was trying to put his feet “up into the fan” was an event not recalled, or only partially recalled by the complainant. That incident appears to have occurred at the only time in which the appellant and complainant were together in the bedroom. There is also the complainant's evidence of seeing a young woman in the house at the relevant time which is not consistent with the aunt’s version of the events.

Conduct of the trial

18. On behalf of the appellant two specific arguments were raised about the conduct of the trial. The first concerned the admission of evidence of the mother and the aunt about changes in the complainant’s behaviour pattern at the time of the incident. The second argued that the cross-examination by the Crown Prosecutor was improper and has resulted in a miscarriage of justice.

19. The change in behaviour arose, according to the aunt, on the evening of the alleged incident. In her evidence in chief she said that when the complainant came out of the bedroom, following the incident relating to the fan, he asked if he had could have a bath. Contrary to his usual conduct, the complainant would not allow his aunt to bathe him or even to touch him. When he woke the next morning the complainant was cranky and would not speak to his aunt and uncle. In cross-examination, however, the situation described was simply that the complainant went to the bathroom and bathed himself. There was nothing so unusual in this change in behaviour which suggested the child had been interfered with.

20. The other evidence about change of behaviour was adduced during examination in chief of the mother.^[16]  This evidence, expanded during cross-examination, was to the effect that the complainant commenced to wet his pants three or four times a day, that he would either not respond to his mother’s inquiring to what was wrong or he would respond by saying ‘nothing’ or ‘I can’t tell you’.^[17]  The mother also gave evidence of the change in his eating habits.  Despite noticing these changes she did not discuss the matter with the boy’s father nor did she seek any professional help during the two weeks that elapsed between the night of the alleged incident and its disclosure whilst the complainant was lying with her on the bed.

21. There was no expert evidence which described the alleged changes in behaviour as being typical or as suggestive of sexual interference and in fact there was nothing at all to directly link this evidence to the alleged sexual assault. Notwithstanding this in his address to the jury the learned Crown Prosecutor adverted to the changes in behaviour as being in some way confirmatory of the assault. The learned trial judge in his summing up referred to the fact of those changes and particularly to the mother’s evidence. The mother said she could not recall raising the matter of the child’s change in behaviour with anyone, including the complainant’s father. His Honour made reference to the reason for the complainant not returning to his aunt’s residence and whether this was the result of a reaction by the complainant’s mother rather than by the complainant himself.

22. The question of changes in the behaviour of a child as constituting a corroborative circumstance was considered by the Court of Appeal in R v Link^[18]. In the joint judgment of Macrossan CJ and McPherson JA the following appears:-

“Distress has been recognised as capable in law of constituting a corroborative circumstance fit for consideration by the jury.  But it has also been acknowledged that, before it is capable of being so considered, there is an initial question to be determined.  It is whether it is a reasonable inference from the evidence that a causal connection exists between the matter of the complaint alleged and the distressed condition: Flannery (1969) VR 586 at 591.  If the circumstances are such that the causal connection or apparent relationship between the distressed condition and the matter of complaint is “tenuous or remote”, then the duty of the trial judge is to withdraw it from the jury as a circumstance capable of being considered as corroborative”.^[19]

23. In this case although the mother’s observations of changed behaviour were contemporaneous with the alleged offence, the changes were not so significant as to cause her to bring them to the attention of any other members of the household, including the complainant’s father. There was, having regard to the mother’s reaction to the complainant’s disclosure, her reaction to the continued visit of the child to his aunt’s residence and her reaction when giving evidence, an obvious danger of over-elaboration in the description of the change of behaviour. Fundamentally there arose a question of whether the inference could reasonably be drawn of the casual connection between the matter of the complaint and the child’s condition. Without that inference the evidence had no relevance to the issue in the case and it was highly prejudicial to the accused.

24. In my view, having regard to the circumstances and the lack of any expert evidence there is a serious doubt whether such an inference could reasonably be drawn.

25. The second ground asserted that the learned Crown Prosecutor resorted to improper and irrelevant cross-examination of the appellant. The questions complained of were part of the prosecutor’s opening gambit –^[20]

“MR. COLLINS: All right.  Now just tell me this.  I just want to ask you a few general question.  What sort of man who’d touch a little boy – a five year old boy on his penis, who’d twist and grab his penis, he’d be a pretty bad sort of person, wouldn’t he? – Yes.

He’d be a despicable person? – What did you say?

He’d be a despicable person, any man who’d do that to a small boy? – What do you mean by that?

Just a dreadful person? – Yes.

He’d be amongst the worst type of people, wouldn’t he? – Yes.

Can you imagine anything worse than an adult male who sexually touches a young boy? – No.

No. It’s about the worse thing that there is, isn’t there? – Yeah.

Yes.  Now that sort of person, he’d have to generally be regarded as a homosexual as well, wouldn’t he? – Yes.

And that’s not the sort of person who – not the sort of thing you’d like to be known as? – No.

No.  And you wouldn’t want to be thought of as the worse type of person, the sort of person who’d touch a young boy, would you? – No.”

26. Having elicited from the witness that irrelevant (and inaccurate) opinion of a person who might sexually interfere with a child, the learned Crown Prosecutor then used it as an explanation for the appellant not being prepared to agree with the Crown case as it was put. He concluded his cross-examination in this way^[21]:-

“And you lifted up the front of his pyjama pants and grabbed hold of his penis, pulling and twisting it, didn’t you? – No.

You see you agreed with me earlier on today that the sort of man who would do that is a despicable man? – Yes.

Someone to be despised.  Someone to be hated? – Yes.

Didn’t you?  And that’s the reason why you can’t admit the truthfulness of what you did? – I’d admit to it if I done it, but I didn’t do it.

What, you’re serious that you would admit to doing that if you’d done it? – Yeah.

Well why aren’t you admitting to it? – Because I didn’t do it.”

27. Counsel for the appellant contends that such questioning gave rise to two dangers – inflaming feelings of prejudice and outrage and secondly, suggesting that the appellant had a substantial interest in not telling the truth. On this latter point counsel relied on the remarks of the majority in R v Ellem (No.2)^[22] in which the members of the Court of Appeal considered the decision of the High Court in R v Robinson^[23] concerning a trial judge’s direction in a rape case as to the interest of an accused person in the outcome of the trial and the impact of that interest on the accused’s credibility.  The High Court in criticising the direction that the trial judge gave said that it was “impossible to escape the conclusion that the fairness of the trial was seriously impaired” as a consequence.  In that case also the direction that “the evidence of the accused person should be scrutinised carefully” because of that interest was seen as being contrary to the presumption of innocence.

28. The issue raised on this appeal is not concerned with the appropriateness of the summing up but whether the cross-examination of this kind impacts on the fairness of the trial. On behalf of the respondent it was argued that the cross-examination, whilst “flamboyant”, was no more than a suggestion that the appellant was lying to avoid responsibility for his actions.

29. In my view, the prosecutor’s questions which sought the opinion of the appellant were objectionable and the answers given were not admissible. To suggest that these answers formed the basis for the appellant’s denial of the complaint was improper. The remarks of this court in R v Foley^[24], though dealing with a different cross-examination tactic, are apposite to this form of questioning.  In some cases such questioning may not impair the overall fairness of the trial.  In this case the cross-examination in those terms was likely to have the effect contended for by counsel for the appellant, namely to inflame feelings of prejudice and outrage and have those feelings directed against the appellant.  It is difficult to see that it had any purpose other than the two objectionable ones which have been identified by counsel on behalf of the appellant.  The questions should not have been asked and in my view they have contributed to the concerns about whether the accused has received a fair trial in this instance.

Is the verdict unsafe and unsatisfactory?

30. The test of whether a verdict will be overturned on the grounds of unsafe and unsatisfactory has been authoritatively determined by the High Court in M v The Queen^[25].

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displayed inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (references omitted).

31. Here there are a number of unsatisfactory features about the trial which have to be considered against the fact that in order to convict the appellant the jury had to rely entirely on the evidence of the five year old complainant. In his evidence there were numerous discrepancies, inconsistencies and improbabilities both in the video-taped evidence and in his cross-examination. These must be seen in the absence of any corroboration or corroborative circumstance. Added to this are the issues raised in relation to the conduct of the trial the combination of which gives rise to a significant possibility that an innocent person has been convicted. The verdict, in my view, is unsafe and unsatisfactory and I would order that it be set aside and that the verdict of an acquittal be entered.

32. The appellant also seeks leave to appeal against sentence which because of the view I have come to, does not require consideration.

33. MULLINS J:  I agree with the reasons for judgment of Jones J and the orders proposed.